28 Seconds

by Michael Bryant

  The spirit of the place was unique within the government. The professionalism and independence came, I think, from those two men. There was a robust constitutional law branch that McMurtry had created and Scott had expanded. The best constitutional lawyers in the country were all there. I knew from my days clerking at the Supreme Court of Canada that Ontario’s was the first factum the judges would turn to when a constitutional issue was before them.

  Mark took me up to the boardroom on the top floor of the building. At lunch, I sat down in the middle of the boardroom table. My former boss and new deputy said, “No, you’ve got to sit at the head of the table. You’re the Attorney General.” I just laughed and blushed. I couldn’t do it. I was suffering from impostor syndrome.

  At the end of the day, I met with Les Scheininger, my Toronto political godfather, and Jack Kay, a senior executive at a Toronto generic drug company. Jack understood large budgets, so he asked me the size of the budget for the Ministry of the Attorney General.

  I had no bloody clue. But I was too insecure to admit as much to Les and Jack, so I picked the biggest number I could imagine for a department.

  “I think … I think … it’s got a budget of … a hundred million,” I said.

  Jack looked surprised and confused.

  “Maybe it’s less!” I blurted out.

  “Huh … I would have thought it was more.”

  Les changed the subject, knowing full well that the budget for my ministry was more than tenfold my estimate. I was in fact accountable and responsible for a billion-dollar ministry, utterly clueless of the scope of the endeavour, at least on my first day.

  That first night, officials gave me a bunch of binders and I took them home and studied them. When I came in the next day, I thought, “Someone’s got to sit at the head of this table.” I found it astonishing that it was me. But it was my post now. So the impostor syndrome only lasted for 24 hours.

  Within about a week, I asked Julia Hanigsberg, who had been a Supreme Court law clerk with me, to be my chief of staff. She was Executive Counsel to the Cabinet Secretary at Queen’s Park, on the civil service side. She had worked in the Ministry of the Attorney General for a number of years. I figured that I knew the politics; I needed someone who understood government. And she certainly knew government. She understood immediately what my offer meant—that she would basically have no life. But, after sleeping on it, she agreed to do it. For a lawyer, it’s a fantastic gig. And she did a spectacular job, with everything except curbing my ego.

  That week, I also hired Greg Crone to handle my media. He was a former Queen’s Park press gallery reporter who had worked in McGuinty’s office in opposition, but wasn’t famous for adhering to a corporate message. He is, however, a genius. He was probably the best communications guy I could have had—or maybe the worst. We were kindred spirits. Probably too kindred. We had so much fun bouncing lines off each other. Crone was as entertaining as human beings get. But the two of us together, especially unsupervised, was not a recipe for understatement, although Assistant Communication Directors Sandra D’Ambrosio and Sarah Roberts did their best to balance the boys’ bombast with the wishes of the Premier’s Office.

  Julia Hanigsberg proceeded to assemble a crack political office team. Adam Dodek, a Harvard graduate and Supreme Court clerk, left a prestigious Bay Street post to head up policy matters. Linda Shin left her elite, well-paid position at my old law firm to manage policy issues and spearhead my legislative efforts, which were ambitious. Many others, like Nikki Holland, Natasha Elkabas, Emily Bullock, and Daniel Infante, ran my life. Many more would come and go over the years, including the veteran campaign guru Tom Allison, who had run the nomination that got me started in politics, and Bay Street lawyers turned politicos Beth Hirshfeld and Alexis Levine. Perhaps most impressive was Julia’s recruitment of Columbia law graduate and Cree legal theorist Douglas Sanderson.

  The Ontario Attorney General’s job turned out to be about half political and half legal. I got deeply involved in the files I would need to defend in public, but tried not to micromanage. The lawyers seemed to like that.

  In December 2003, as my first act as A.-G., I launched the public inquiry into the death of unarmed Indian protester Dudley George at Ipperwash in 1995. Led by veteran MPP Gerry Phillips, we had demanded an inquiry for years in opposition. And I appointed former Chief Justice Sidney Linden to head it.

  Right away, we also had a bunch of contentious political and legal issues. One involved the families of autistic children, in a series of cases they’d brought against the province. A ruling had come down that had haunted the previous government and which we had inherited. It was about the old government’s approach to underfunding care of children with autism, and which branch of the state ought to decide the best autistic treatment for Ontario kids: the courts or the government?

  The second issue was the salaries of provincial court judges. They had just been awarded a 20 percent pay increase by arbitrators. The question was whether the government was going to appeal the arbitration.

  The third issue was what to do with Highway 407, a toll highway. We had promised to tear up the Harris government’s agreement, which had sold it off to the private sector in a fire sale for quick, easy cash. But it became clear very quickly that we weren’t going to be able to tear up the contract, because it was, legally, watertight. Any attempt to vary the agreement carried with it financial penalties. There was no way, legally, to terminate the agreement, absent something too radical, like legislating it out of existence.

  The politically expedient thing to do was to yield to the demands of the autistic children’s families, to fight the judges’ salary increase, and to fight the 407 sale in the courts—truly a façade for action.

  The constitutionally pious thing to do was the reverse: to not let the courts dictate the government’s autism treatment policy; to leave the judges’ raise alone because the agreed-upon arbitration process had been correctly followed; and to stand down on the 407 sale.

  I chose the constitutionally pious approach and it landed me on the carpet in McGuinty’s constituency office in Ottawa. The Premier was particularly vexed about the judges’ salary increase because he felt it was going to hamper negotiations with teachers and other unions.

  I told him the Attorney General is supposed to be independent of the government on such things and able to make an independent decision. He understood that. But he wasn’t happy about it.

  I also made it clear to him that if we allowed the decision to stand on funding for families of autistic children and didn’t appeal it, there would be endless numbers of court injunctions that would, in essence, Americanize our system. The precedent being set by these autism funding cases was radical and had to be tested in appellate courts, I thought. If those decisions were allowed to stand, then in the future if a disaffected group didn’t like a government decision they could just take it to the courts and let the judges decide—no matter the cost to the treasury—whether program funding was sufficient.

  In the end, I rolled over on the Highway 407 litigation. We fought it in the courts, even though there were no decent grounds. We lost that case a couple of years later.

  On the judges’ salaries, I allowed the appeal period to pass without doing anything—which forever after earned me the displeasure of the Premier’s Office, who viewed it as a power play on my part. But I felt strongly about that one and I was willing to risk losing my job for it. I knew the Premier wasn’t going to fire me over that, but I realized it might mean a reassignment in the next shuffle.

  On the autism file, I convinced the Premier and the Cabinet that appealing it was the right thing to do. Dr. Marie Bountrogianni, an expert in the field who happened to also be the Minister for Children, had developed an excellent policy supported by most experts and many families of autistic children. It was a policy worth defending. Our government couldn’t let the courts micromanage government policy, and that’s what these decisions amounted to, I argued
. So let’s defend our policy, and appeal the decision, even if the plaintiffs were the last people you’d want to be fighting in court: families of autistic children. And that’s what we did. My political concession was to offer to pay for the legal costs of the families.

  The province’s arguments were accepted in the Court of Appeal. The court said it was up to the government to set policy and the McGuinty government was, in fact, already doing more than the court would ask for.

  And that was the first few months. It was chaotic. I was loving it.

  IN JANUARY 2004, I gave a speech at the opening of the courts that was a barnstorming piece of rhetoric on the independence of the judiciary, and the efforts by conservatives to Americanize the courts through so-called judicial accountability where report cards would be done on judges’ findings.

  Those speeches were vetted. But it was an operating practice in my office to file the comments from the Premier’s Office in the shredder. I took enormous pride in it. But it made Julia Hanigsberg very tense and required her to spend a lot of time being screamed at by the Premier’s Office.

  That summer, I began my government foray into criminal justice policy. In Opposition, I’d been uncharacteristically active on the file, for a Liberal MPP. As I later told federal Liberal Leader Stéphane Dion, for too long Liberals had been stuck in the summer of love. (True, but it was an obnoxious turn of phrase that ended up in a Globe and Mail cartoon, portraying Dion as a hippie advocating flower power over gun power.) In any event, I thought that we’d become irrelevant on crime, and McGuinty said as much back in 1999 when he asked me to be the Justice Critic.

  But now we were in government, and I wanted to do something about the organized crime operations that had moved from Quebec into Ontario. Thus was born my Organized Justice campaign—“the best response to organized crime is organized justice.” I did an interview with journalist Richard Mackie that ended up on the front page of The Globe and Mail.

  In it, I made no reference to the Hells Angels. But at the time the story ran, two members of the Hells Angels were being prosecuted on extortion charges. So the Hells Angels lawyer subpoenaed me and brought a motion for abuse of process, alleging that my comments had destroyed their chance of a fair trial.

  In September 2004, I ended up riding in a squad car to the court, where I awaited the judge’s verdict as to whether I was going to be subpoenaed and cross-examined by Hells Angels lawyer Steven Skurka. There had been some concern about my safety, but it was only speculative, not based on any information. Regardless, that week the OPP drove me around. In fact, my family had been up at the cottage at Stony Lake and there was an OPP boat positioned about 100 feet offshore, off and on, all weekend long.

  As it turned out, Madam Justice Michelle Fuerst dismissed the motion. But I knew that if it had been granted and the trial was thrown out as a result of what I’d said in that Globe interview, I would have had to resign.

  As a result of that incident, I realized the stakes whenever I spoke out on crime—that I could be putting prosecutions at risk, and putting my career at risk. Cabinet ministers are warned about this, but the political near-death experience has to be lived. However, I also saw just where the boundary lay. I saw the line that could not be crossed, and that the closer one inched, the greater the risks. I was willing to take those risks, and thereafter I did so with confidence as to exactly where not to step in the minefield of politics and crime.

  After that, our next big controversy was over Sharia law. A Muslim cleric had set up a Sharia law institute and said that, under the 1990 Arbitration Act, family-law matters could be determined based upon Sharia law. He was right. That’s how the act worked. Anybody could set up an arbitration system based on whatever law they chose, so long as those who went to it consented.

  At first the coverage was minimal. Then the Toronto Star ran an editorial criticizing the government for quietly allowing Sharia law to operate in Ontario. We complained and the Star’s ombudsman wrote a piece saying that the editorial was inaccurate, that we had never done anything of the sort. I’m not sure many read the latter, but they definitely read the original editorial. The inaccuracy stuck: the government was somehow to blame for allowing Sharia law to govern in Ontario.

  It kept bubbling up in the media, so in June 2004 I asked former NDP Attorney General Marion Boyd, who had a background in women’s issues and was a member of the Legislature when the act was passed, to investigate and make recommendations on family law and arbitration in Ontario, including religious-based arbitrations.

  Boyd’s review of the issue quieted further media investigations into the matter and the furor died away for the time being. This technique, of building a bridge over a contentious issue, is used constantly by governments, recognizing that the issue of the day might not be so in the future, whether the government fixes it or not. (Whether Sharia law was actually something to be “fixed” was to be considered by the Boyd Report.)

  But another problem was developing, as the world turned, and it had nothing to do with Sharia law or organized crime or the early contentious court cases we’d faced to date. In fact, you’d never think that dog attacks would be the concern of the Attorney General of a Commonwealth province, but dog attacks indeed became my business in the autumn of 2004.

  FIVE

  Comfortably Scrummed

  I have a lot for which to thank the Honourable Roy McMurtry: his personal support, his invaluable counsel, his remarkable public service as Ontario Attorney General, Canada’s High Commissioner to London, and chief justice of Ontario. But not everything associated with McMurtry was regal. He was an activist like few other politicians in Canada. If there was a problem, Attorney General McMurtry would find a solution, and often legislate on it.

  During his time in government, the Ontario Legislature passed more than 50 law reform statutes introduced by McMurtry, including the first major family-law reform legislation in Canada, the creation of a bilingual court system, and a network of legal aid clinics. On the more mundane side, he created legislation regarding daylight savings time, which meant that when President George W. Bush changed daylight savings time for the United States in 2004, everyone scrambled around to find out which minister would be responsible for responding in Canada. It turned out to be a provincial matter, and in Ontario that meant Roy McMurtry must have legislated on the issue at some point in his decade as Attorney General.

  So it shouldn’t be surprising that I have Roy McMurtry to thank for my constitutional jurisdiction over pit bulls. Minister of Justice McMurtry responded to a set of public recommendations regarding irresponsible animal owners. Constitutionally, if dog bites man, it’s an issue for the Attorney General. If man bites dog, then it’s the Solicitor General who steps up. Or this was the formula used by my Solicitor General counterpart, and good friend, Monte Kwinter.

  Between September and mid-October 2003, there was a rash of reported pit bull attacks. The first time I got a call on the issue, I was coming back from a speech in London on October 14, 2004. Our office had received a call from Richard Brennan of the Toronto Star, a famously pugnacious reporter who was known, for good reason, as “The Badger.” He would soon become president of the Parliamentary Press Gallery in Ottawa. For now, he was asking if I was going to ban pit bulls. Here was an example of a reporter putting an idea into the head of a politician. Or at least it was the first time that the idea of a pit bull ban had been raised, to my knowledge.

  I turned to Linda Shin, riding in the back seat of the Ministry car with me. Linda was a Bay Street lawyer, from my former firm McCarthy Tetrault, who had come to work in my office through Michael Barrack, a long-time supporter and a senior partner at that firm. Linda was brilliant, innovative, indefatigable, and hilarious. Prior to joining my office, she hadn’t had any first-hand political experience. However, she was a natural at seeing political angles invisible to others. The pit bull ban was a good example.

  Shin knew that such a ban would be explosive, but also knew
it could work. Crone, my communications director, loved the idea, but made it clear that the media coverage of any dog issue would be intense. Linda and I strategized out the issue. Pit bull attacks had caught the attention of editors and producers, so every reported pit bull attack would get media attention in the coming weeks, maybe months. Based on my experience (having fielded calls on pit bull attacks as a local MPP), there would inevitably be more attacks, and the demands for action would increase. So, we might as well decide now what to do.

  I’d never been personally attacked by a pit bull, or any other dog, for that matter. However, over the years in my MPP constituency office I’d met several dog owners whose pets had been attacked by pit bulls. I met more than a few people who’d been victims of pit bull attacks. One constituent spent an hour educating me on the history of pit bulls: the Molossians, the Mastiffs; the Greeks, Romans, Brits, Tibetans, and Germans; the cross-breeds. A common theme ran throughout their history: they were the fiercest of fighters, and eventually bred to fight—in wars during antiquity, in dog fights for centuries. Regardless, they were again and again attacking other dogs and people. There is an intractable debate about whether to blame the dog-breeders or the dog-owners, but the bottom line was that pit bull attacks had become a public safety issue.

  The idea of banning pit bulls was initially appealing to me. It appealed to my instincts—that pit bulls were inherently dangerous—and to my ego. The audacity of banning a dog breed was right up my alley. But on matters like this, I mostly followed my political instincts: the “gut,” as my mentors would say. (Although, my mentor McMurtry was also fond of the cricket strategy: “When in doubt, step out!”)

  But I knew that before I could tell Brennan anything I was going to have to clear it with the Premier’s Office. Dog politics had landed many a politician in trouble. I was fine with the trouble that would come with a pit bull ban, but there was no point trying if the Premier’s Office was going to kibosh it out of hand.